The Court in McCutcheon overturned forty years of national policy and thirty-eight years of judicial precedent to strike down the overall limits on the total contributions an individual could give to federal candidates and to party committees in an election cycle.

The McCutcheon decision represents the first time that the Supreme Court has reversed a holding in its landmark decision in Buckley v. Valeo and the first time the Court has struck down a core federal contribution limit.

In 2010, the same Supreme Court majority struck down the longstanding ban on corporate expenditures in federal elections in the Citizens United decision. That decision paved the way for vast amounts of unlimited contributions and secret money to be spent to distort federal elections and corrupt government decisions.

With its Citizens United and McCutcheon decisions, the Supreme Court has turned our representative system of government into a sandbox for America’s billionaires and millionaires to play in.

The Court’s decisions have empowered a new class of American political oligarchs and have come at the enormous expense of the voices and interests of more than 300 million Americans.

Cloaked in jurisprudence, the five Justices who make up a majority on the Supreme Court are imposing their ideology and politics on the country. In the process, they are issuing radical, not conservative, opinions.

Most importantly, they are ignoring history and the Justices who came before them at our peril.

The Court majority has wiped out laws, and overturned Supreme Court decisions upholding them, that banned expenditures by corporations in federal elections and that limited total contributions by an individual in an election cycle.

The Court majority also has, for all practical purposes, gutted laws, upheld by past Supreme Court decisions, which prohibited large “soft money” contributions to political parties. They also have eviscerated laws, upheld by past Supreme Court decisions, which prohibited federal officeholders and candidates from soliciting large contributions.

In essence, this Court has ignored the nation’s past political money scandals – including the Robber Baron era of the 1890s, the Watergate scandals of the 1970s, and the soft money scandals of the 1990s – and the corrective actions taken to address the scandals. The Court also has ignored the numerous decisions by past Supreme Court Justices that recognized the constitutionality of and essential need for these corrective actions.

Instead, the Court majority, led by Chief Justice Roberts, has climbed into its own ivory tower and came back down to pronounce that they have discovered the new truth about big money in American politics. It is all good, these Justices tell us; indeed, the more the better.

The linchpin of the McCutcheon decision can be found in the new definition developed by the Court majority of what constitutes grounds for limiting contributions to candidates and parties.

Chief Justice Roberts wrote in McCutcheon, “Any regulation must instead target what we have called ‘quid pro quo’ corruption or its appearance. That Latin phrase captures the notion of a direct exchange of an official act for money.”

This, of course, is a description of bribery, and this very narrow standard is a sea change from what the Court found as justification for contribution limits in Buckley:

Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly drawn disclosure requirements constitute a less restrictive means of dealing with “proven and suspected quid pro quo arrangements.” But laws making criminal [424 U.S. 1, 28] the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action. And while disclosure requirements serve the many salutary purposes discussed elsewhere in this opinion, Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed.

In Citizens United, Justice Kennedy writing for the majority said about the Court’s prior rulings that upheld contribution limits: “The Court, in consequence, has noted that restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements.”

But now, the same Court majority has applied a quid pro quo “bribery” standard in McCutcheon.

This standard utterly fails to recognize how money actually works in American politics to buy influence and government decisions. There is absolutely no need for a “direct exchange” of money for “official acts.” That can be easily accomplished without any “direct exchange.”

As the late Senator Russell Long once said, “The distinction between a campaign contribution and a bribe is almost a hairline’s difference.”

And now post-McCutcheon, a president can solicit a $1 million check for a joint fundraising committee involving the president’s party and a donor can write the $1 million check. This creates opportunities for corruption.

Justice Kennedy recognized this as a corruption problem in 2003, when he said about soliciting large contributions in the McConnell case:

The making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payment (by granting his request). Rules governing candidates or officeholders solicitation of contributions are, therefore, regulations governing their receipt of quids.

In other words, according to Justice Kennedy, soliciting large contributions creates the opportunity for quid pro quo corruption and therefore can be prohibited.

The Court upheld the solicitation prohibition by a seven-to-two vote in McConnell, stating:

Large soft-money donations at a candidate’s or officeholder’s behest give rise to all of the same corruption concerns posed by contributions made directly to the candidate or officeholder. Though the candidate may not ultimately control how the funds are spent, the value of the donation to the candidate or officeholder is evident from the fact of the solicitation itself.

In voting in McCutcheon to strike the overall contribution limits, however, the five Justices including Justice Kennedy, eviscerated the solicitation prohibition the Court, including Justice Kennedy, voted to uphold in McConnell.

With the overall contribution limits struck down, a president can now solicit and individual donors can now contribute to a political party through joint fundraising committees as much as $1.2 million per donor in a two-year election cycle. A House Speaker or Minority Leader can now solicit and an individual donor can now contribute to a joint fundraising committee supporting their party’s House candidates as much as $2.3 million per donor in a two-year election cycle

These kinds of examples create the opportunities for corruption that arise when federal officeholders solicit huge contributions from donors seeking to buy government influence and decisions. The examples were submitted by Democracy 21 and others to the Supreme Court in briefs filed in the McCutcheon case.

Chief Justice Roberts called the “scenarios” like this that were before the Court as being “divorced from reality.”

But it is Chief Justice Roberts who is divorced from reality.

This can be seen, for example, in a memo issued by Covington & Burling, a prominent Washington law firm, on the day the McCutcheon decision was issued.

The memo discussed joint fundraising committees and the impact of the McCutcheon decision – in “reality” terms:

After today’s decision, we expect to see the emergence of large “Super JFCs” [Joint Fundraising Committees] that will have many candidate participants. These Super JFCs will be able [to] accept very large contributions in a single check. For high net worth individuals, this means they will be able to write fewer checks than before, but now with much greater impact.

Going forward, we expect today’s decision will increase the political power of Members of Congress who have a strong relationship with high net worth donors. We also expect it to increase the influence of major donors.

Another impact of McCutcheon in “reality” terms can be seen by looking at what happened in 2012 and what it tells us about future elections.

In the 2012 presidential election, President Obama and Republican nominee Mitt Romney each solicited individual checks for $70,800 for the joint fundraising committees they established for their respective parties.

Why $70,800? Because $70,800 was the maximum an individual could give under the overall contribution limit. It was also the maximum a federal candidate could solicit under the solicitation prohibition.

With the overall contribution limit now struck down, the new maximum limit that a presidential candidate can solicit for his party, and that a donor can give, is $1.2 million. Does Chief Justice Roberts think that “reality” under these circumstances is that presidential candidates won’t solicit the maximum amount that they can in the future, as they did in 2012? Even if presidential candidates solicited half of the maximum they can, they would still be asking for huge contributions of $600,000 per donor.

Does Chief Justice Roberts also think “reality” is that these huge contributions won’t provide opportunities for donors to seek and obtain corrupting influence with the officeholders and candidates soliciting the huge contributions?

The history of money in American politics is that officeholders, candidates, and big donors will do what they are allowed to do. This is what we saw with the now prohibited soft money system in the 1990s. This is what we are seeing post-Citizens United with Super PACs.

This is also what we can expect to see post-McCutcheon, with officeholders and candidates using joint fundraising committees to solicit the huge contributions now allowed and donors giving these contributions in response to the solicitations.

The reality is that with the McCutcheon decision, Chief Justice Roberts and the Court majority have re-created the system of legalized bribery that existed prior to the Watergate scandals, and that Congress and the Supreme Court had shut down during the past forty years.

The Roberts majority has turned a blind eye to the lessons of history and to the wisdom of previous Justices on the Court. Our nation will pay a heavy price for the damage the current Court majority has done to our democracy.

Fred Wertheimer is Founder and President of Democracy 21, a nonpartisan organization that works to strengthen our democracy and empower citizens in the political process. He is a longtime national leader and spokesman on money in politics, campaign finance reform and related government integrity, transparency and accountability measures.

Major Cases

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Air and Liquid Systems Corp. v. DeVries In the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger.

Nielsen v. Preap The judgments of the U.S. Court of Appeals for the 9th Circuit -- that respondents, who are deportable for certain specified crimes, are not subject to 8 U. S. C. §1226(c)(2)’s mandatory-detention requirement because they were not arrested by immigration officials as soon as they were released from jail -- are reversed, and the cases are remanded.

Washington State Department of Licensing v. Cougar Den Inc. The Supreme Court of Washington’s judgment -- that the “right to travel” provision of the 1855 Treaty Between the United States and the Yakama Nation of Indians pre-empts the state’s fuel tax as applied to Cougar Den’s importation of fuel by public highway for sale within the reservation -- is affirmed.

Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.